Categories: International Law

Using Occam’s Razor to Solve International Attorney-Client Privilege Choice of Law Issues: An Old Solution to a New Problem

Nathan M. Crystal & Francesca Giannoni-Crystal

Volume 41 - Issue 2, Winter 2016, Page 276

Abstract

The practice of law is increasingly becoming “delocalized,” affecting many areas including attorney-client privilege (ACP). Starting with a primer on ACP for non-U.S. readers, this article looks at ACP (rectius: professional privilege) in Europe and proceeds to discuss six approaches to choice-of-law issues governing ACP. Of these six approaches, one applies the law of the forum to the claim of privilege and the five remaining approaches all seek to determine which jurisdiction has the most significant interest in having its law govern ACP. These approaches unfortunately, all remain tethered to localization factors, which is why this article offers an alternative framework. This framework is based on the recommendation of a new (but actually older) methodology—return to the lex loci fori to determine issues of ACP in international cases. As argued in the article, this approach offers substantial benefits based on fairness and efficiency considerations. Ironically, although the authors do not adhere to this movement, their approach is compatible with the new “buy American” approach to choice-of-law, exemplified by Alabama’s constitutional amendment prohibiting, in short, every application of foreign law.

New States: Chained to Old Treaty Obligations or Clean Slate?

Andrea Gordon

Volume 41 - Issue 3, Spring 2016, Page 533

Abstract

This Article aims to analyze the inconsistencies and resulting issues of the case-by-case approach ton international treaties and inspire action. Current U.S. policy is to apply a case-by-case analysis to every situation that arises. The status quo is costly because it leads to repetitive litigation and, in turn, incredibly inconsistent outcomes. Pursuing a new solution, whether domestically or internationally, is in a state’s best interest. However, it is unclear that an international solution would be less costly than the status quo. A more realistic solution would be for states to internally coordinate and promulgate a coherent internal policy that is applied consistently to all situations of succession.

Conservation groups have called for a Minnesota dentist to be federally prosecuted for tracking and killing one of southern Africa's best-known lions last month. That doesn't seem likely to happen, but he could face a years-long extradition battle and poaching charges in Zimbabwe.

On November 14, 2014, Sony Pictures Entertainment was hacked, locking employees out of their computers, compromising important internal data, and leaking unreleased movies onto the internet. In response to the attack, President Obama said the U.S. would "respond proportionately." The President’s authority to respond proportionately to the Sony attacks is based in principles of international law.

After initial plans to cancel the release of the movie, The Interview , and in the face of heavy criticism, Sony decided to release the film in December 2014. As one commentator notes, “[a]lthough international law still protects the dignity of Heads of State, it may no longer do so . . . in anything less than extreme circumstances of personal offence or insult.”

On Tuesday February 18 the
United Nations High Commissioner for Human Rights, Navi Pillay, asked world
powers to refer the Democratic People’s Republic of Korea (DPRK) to the
prosecutor of the International Criminal Court (ICC). This comes not in
response to their nuclear efforts, but to a recent U.N. report which documents crimes
against humanity that have been, and still are, occurring in the isolated,
impoverished country of North Korea.

A
corporate officer of an importer of record is not directly liable for gross
negligence when misrepresenting the value of imported merchandise to Customs
and Border Protection, according to the Federal Circuit Appeals Court ruling in United States v. Trek Leather, Inc. on
July 30, 2013. This seemingly well settled principle, based on traditional notions of personal
liability protection under the corporate law shield, will soon be tested because
the Federal Circuit has granted the U.S. Government’s petition for an en banc
rehearing of this case.

Freedom of speech is a fundamental human right
which allows people to communicate freely. However, inappropriate
communication often leads to conflicts in society. Inappropriate
communication can provoke anger and ignite flame wars between
people. In particular, inappropriate communication in cultural
diversity can easily constitute intercultural or cross-cultural
conflict. The “Innocence of Muslims” is an example of inappropriate
communication which...

The
current national and transnational regulatory and policy framework for
transgenic plant agriculture and food is arguably largely defined by science.
Notably, transgenic plant agriculture policy deference to science is ostensibly
premised on the general perception that science is neutral, objective,
reliable, and agnostic. This is exemplified by cases that range from Alliance for Bio-integrity v Donna Shalala, European Communities: Measures Affecting
the Approval and Marketing of Biotech Products, to European Commission v Republic of Poland, in which conscientious,
ethical, religious, and cultural oppositional grounds to transgenic plant
agriculture and food were trumped by scientific imperatives. However, the lack
of unanimity of views amongst scientists on...

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